TwIqbal

Subscribe to TwIqbal via RSS
Photo of Bexis

Today’s guest post comes from Reed Smith partner, Matt Jacobson. He discusses a new medical device case that puts the “Tw” in TwIqball – as in twisting a screw. The result is a total defense win, albeit with the “twist” that the plaintiff can try again, if he can. As always, our guest posters deserve 100% of the credit (and any blame) for what they write.

*********

Have you ever heard that old idiom “having a screw loose” and wondered where it came from?  My guess is most of you have heard the saying, but never thought twice about its origin (well maybe Bexis has).  But since I have your attention, here is a small history lesson.  During the industrial revolution, if a screw from a machine came loose it meant that the machine was not behaving normally.  Since these machines were built for mass production, having a screw come loose would cause the entire machine to shut down, halting the process.  At least one person claims that Eli Whitney, famed for inventing the cotton gin, was the person to say this phrase first.  But I cannot verify that fact no matter how many internet searches I ran, so that will remain a mystery.   Continue Reading Guest Post – Twlqbal in the E.D. Cal.- No Screws Loose There

Photo of Bexis

Our prior TwIqbal post concerning learned intermediary causation was well received by our readers, so we’re back with a second, related (and, as it turned out, even longer) discussion of pleading in prescription medical product warning litigation.

In addition to pleading causation, a product liability plaintiff alleging an inadequate warning must plead how the warning was inadequate.  Sounds rather obvious, but never underestimate the capacity of plaintiffs in our sandbox for failing to plead their cases.  The amount of precedent bouncing lazy plaintiffs for not bothering to allege what (they claim) is wrong with prescription medical product  warnings is surprisingly (or maybe not) extensive.Continue Reading Using TwIqbal To Require Plaintiffs To Identify Claimed Warning Inadequacy

Photo of Steven Boranian

We receive emails from readers fairly regularly.  They are usually from other attorneys, sometimes friends or acquaintances sharing their points of view or expanding on things that we may have underplayed or overlooked.  Although we don’t spend much time (or really any time) trying to predict when we might hear from others, we have noticed…

Photo of Bexis

Anybody who has litigated a prescription medical product liability case knows about the learned intermediary rule, which is now followed in all fifty states.  Just as prescription medical product warnings are routed through prescribing physicians, so necessarily is the causation aspect of such warnings.  The details vary from state to state, but in all learned intermediary cases, correcting an allegedly inadequate warning must cause the learned intermediary physician to do something differently, and that “something” must prevent the plaintiff’s claimed injury.

At the same time, the Supreme Court’s TwIqbal decisions require that plaintiffs plead facts to support the elements of their causes of action.  From the defense perspective, that means that complaints against our clients should be required to plead (at minimum): (1) the identity of the relevant prescriber, (2) what that prescriber would have done differently with a “better” warning, and (3) how that difference would have prevented the claimed harm.  We don’t ask for a lot, but at least one fact supporting these essential causal elements should certainly be mandatory.Continue Reading Using TwIqbal To Enforce Warning Causation in Learned Intermediary Cases

Photo of Rachel B. Weil

When last we spoke, we were about to deliver our beautiful standard poodle puppy, Luca (registered name Tivin Dreamcatcher), to his show handler, who would trim him and train him and launch his dog show career.  The transfer was accomplished without incident, if you don’t count mommy’s predicable reaction to the separation.  It also included…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn More About This Book